Foshee v. Foshee

123 So. 3d 817, 2013 WL 4565295, 2013 La. App. LEXIS 1752
CourtLouisiana Court of Appeal
DecidedAugust 28, 2013
DocketNo. 2012-CA-1358
StatusPublished
Cited by7 cases

This text of 123 So. 3d 817 (Foshee v. Foshee) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foshee v. Foshee, 123 So. 3d 817, 2013 WL 4565295, 2013 La. App. LEXIS 1752 (La. Ct. App. 2013).

Opinion

Judge TERRI F. LOVE.

11 This appeal arises from a child custody dispute. The father sought to modify the joint custody arrangement and to be named the primary domiciliary parent. The father claimed in the motion for modification that the custodial mother’s intent to return to Africa with their daughter was not in the best interest of the child. After a trial on the merits, the trial court maintained the mother as the primary domicili[819]*819ary parent. The trial court concluded that although “great good” would come from fostering a better relationship between the father and his child, removing the child from her primary custodial caregiver for the last several years was not in the best interest of the child. The father asserts that the trial court abused its discretion by failing to consider the factors set forth in La. C.C. art. 134 and to modify the child custody arrangement. We find the trial court properly considered the factors of La. C.C. art. 134, as demonstrated in the trial court’s oral reasons, and did not abuse its discretion in designating the mother as the domiciliary parent. Therefore, we affirm.

V,FACTUAL BACKGROUND AND PROCEDURAL HISTORY

James Foshee (“Mr. Foshee”) and Crystal Kigoni, formerly Foshee, (“Mrs. Kigo-ni”) are the parents to a daughter born on October 25, 2004. Mr. Foshee and Mrs. Kigoni were later married in 2005. Subsequently, Mr. Foshee filed a petition for divorce in 2007. In connection with the divorce, the parties entered into a consent judgment wherein both parties were awarded joint custody of the minor child. Mrs. Kigoni was designated as the domiciliary parent. At the time, Mr. Foshee was attending nursing school, and it was agreed that Mrs. Kigoni could take the minor child with her while she served as a missionary in western Kenya, Africa. The judgment further provided that Mr. Fosh-ee’s completion of nursing school would be considered a material change in circumstances for the purpose of allowing modification of the judgment.1 The parties were later divorced in 2009. Additionally, Mr. Foshee has completed his nursing studies.

Mr. Foshee filed a motion for emergency ex parte order of temporary custody of minor child and a motion to modify custody upon learning that Mrs. Kigoni and the minor child relocated to North Carolina. Prior to the hearing, the trial court signed an interim consent judgment setting out a visitation schedule for Mr. Foshee and his daughter. Following the trial on the merits, the trial court ruled that Mrs. Kigoni would remain the domiciliary parent of the minor child; however, the trial court ordered the parties to create a visitation schedule. Subsequently, Mr. Foshee filed a request for written reasons. He also filed a motion for new trial in |Rorder for the trial court to rule on Mr. Foshee’s visitation with the minor child. The record indicates that the trial court never ruled on the motion for new trial.

Mr. Foshee later filed a motion for de-volutive appeal of the trial court’s judgment designating Mrs. Kigoni the minor child’s domiciliary parent. After the trial court granted Mr. Foshee’s appeal and Mr. Foshee’s appeal was lodged in this Court, the parties entered into a consent agreement in August of 2012. In the agreement, the parties created a visitation schedule. Thus, before any hearing was held on the motion for new trial, the parties settled the visitation issues with the August 2012 Consent Agreement. Accordingly, Mr. Foshee’s appeal as to the child custody issue follows.

RIPENESS

In her appellate brief, Mrs. Kigoni claims that because Mr. Foshee signed the August 2012 Consent Agreement regarding the visitation issues and made pursuant to the trial court’s request for the parties to confect a visitation schedule, Mr. [820]*820Foshee acquiesced to the trial court’s ruling designating Mrs. Kigoni as the primary domiciliary parent and thereby barring this appeal.

A review of the August 2012 Consent Agreement does not address the issue of domiciliary parent. The sole issue addressed in the consent agreement is visitation and physical custody, as the domiciliary parent is the issue of the present appeal. Additionally, Mrs. Kigoni admits in her brief that the consent agreement does not specifically label her as the primary domiciliary parent. Further, the issue of whether the present appeal is ripe for appellate review was previously addressed in Mrs. Kigoni’s motion to dismiss; which this court denied.

\ ¿STANDARD OF REVIEW

It is well-established that child custody determinations made by the trial court are “entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion.” McKenzie v. Cuccia, 04-0112, pp. 8-4 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 338. See also Watts v. Watts, 08-0834, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 855, 857.

Mr. Foshee argues that because the trial court failed to provide written reasons for its judgment addressing the applicable factors under La. C.C. art. 134 the recognized standard of review in a child custody case should not apply. However, it is a well-established rule that a trial court’s failure to provide written reasons is not grounds for reversing the judgment. Hall v. Folger Coffee Co., 03-1734, p. 4 (La.4/14/04), 874 So.2d 90, footnote 9. Further, the Louisiana Supreme Court in a discussion of the applicable standard of review stated, “the trial court is not required to expressly analyze each factor in its oral or written reasons for judgment.” Gathen v. Gathen, 10-2312, p. 12 (La.5/10/11), 66 So.3d 1, 9.

Although Gathen involved relocation, the Supreme Court’s conclusion applies here because the best interest of the child remains the standard governing the trial court’s modification decision. It follows that despite the trial court’s failure to expressly analyze each factor in oral or written reasons, the appropriate standard of review is that the trial court’s modification decision is entitled to great |5weight and will not be disturbed absent a clear abuse of discretion. Id., 10-2312 at p. 13, 66 So.3d at 9. Additionally, the Supreme Court acknowledged:

[A] trial court’s failure to expressly analyze each factor makes appellate review for abuse of discretion somewhat difficult. Most certainly an articulation of the trial court’s consideration of each of the factors would better facilitate appellate review. However, based on the reasons given, we can assume that the trial court discussed the factors it felt were decisive to the ease, and did not discuss the factors that it believed were not as important and should not be given much weight.... [T]he trial court is free to give whatever weight it deems appropriate to each of the factors. Thus, upon review, it is appropriate for a reviewing court to look to the reasons and factors the trial court did expressly take into account in reaching its ultimate determination, and, for the factors the trial court did not expressly discuss, it is appropriate for the reviewing court to determine whether the trial court’s failure to give weight to these factors led the court to abuse its discretion in reaching its ultimate determination....

Gathen v. Gathen, 10-2312, p. 13 (La.5/10/11), 66 So.3d 1, 10.

Accordingly, we find no merit to Mr. Foshee’s argument, and this Court on ap[821]

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Bluebook (online)
123 So. 3d 817, 2013 WL 4565295, 2013 La. App. LEXIS 1752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foshee-v-foshee-lactapp-2013.